Schuette: Legal for GOP to amend minimum wage, sick leave initiatives

Jonathan Oosting
The Detroit News
Bill Schuette campaigns at a rally for GOP candidates for office at Villa Penna in Sterling Heights, MI on November 1, 2018.

Lansing — Republican Attorney General Bill Schuette has given his legal blessing to an attempt by Michigan’s GOP-led Legislature to amend paid sick leave and minimum wage initiatives adopted to keep them off the ballot.

In a legal opinion sent Monday to Senate Majority Leader Arlan Meekhof, who had requested it, Schuette said the Michigan Constitution does not prohibit the Legislature from amending an initiated law during the same two-year session in which the Legislature adopted  it.

Schuette’s finding contradicts and supersedes a 1964 legal opinion from then-Attorney General Frank Kelley, a Democrat who said adopting an initiative sent to the Legislature through a petition drive only to change it in the same session would violate “the spirit and letter” of the process allowed under the 1963 Constitution.

"The language of the Constitution and subsequent decisions by the Michigan courts ... cast doubt on the validity of this conclusion," Schuette wrote, noting voters who approved the Constitution "did not impose any express limitations on amending a legislatively enacted initiated law."

The Michigan Legislature has never attempted to adopt and amend a citizen initiative in the same session. But Republican legislators are attempting to do so in the lame-duck session after adopting paid sick leave and minimum wage initiatives in September. Keeping them off the ballot made them easier to change, requiring a simple majority instead of a three-quarters vote in both chambers.

The House is poised to take up Senate-approved legislation that would overhaul both laws, delaying full implementation of the $12 minimum wage until 2030, capping the rate at $4 for tipped workers and exempting small businesses and other companies from the mandatory sick leave law.

Democrats have argued the process is unconstitutional, and an attorney for both initiatives said Schuette's opinion will not discourage potential legal action. 

"It's not worth the paper it's written on," said Mark Brewer, former chairman of the Michigan Democratic Party who is now legal counsel for the MI Time to Care and One Fair Wage ballot committees. "Schuette has been a partisan hack his entire career. It's a gift to Meekhof as he walks out the door. That's all this is."

Schuette’s ruling ‘has done great damage to the legitimacy of his office” and falls far short of his responsibility to remain apolitical, the House Democratic Caucus said in a statement.

“Just like his friends in the legislature, the attorney general seems intent on using his last weeks in office to turn this lame duck session into nothing more than a GOP smash and grab before Democrats take office in January,” the group said in a statement.

Schuette spokeswoman Andrea Bitely said the attorney general's opinion "speaks for itself."

The minimum wage and paid sick leave initiatives were sent to the Legislature by liberal groups who circulated petitions and collected signatures from hundreds of thousands of Michigan voters.

Meekhof requested Schuette's legal opinion “to have a neutral party weigh in on any concerns that have been raised,” said spokeswoman Amber McCann. The West Olive Republican “feels confident he can treat the initiative as he would any other statute and amend regardless of the timing.”

Schuette ran for governor this year but lost in the general election to Democratic Gov.-elect Gretchen Whitmer, who will take over for term-limited Republican Gov. Rick Snyder on Jan. 1. Schuette, along with many lame-duck lawmakers, will also leave office at the end of the year. 

Kelley’s 1964 opinion against adopting and amending an initiative in the same session had never been tested in court. Democratic Attorney General Dana Nessel could be asked to revisit the issue.